Bill > SJR7

Introduced Session

Legislative Counsel's Digest: Article 11 of the Nevada Constitution, commonly known as the Education 1 Article, requires the Nevada Legislature to provide for the establishment of a State 2 University that is controlled by a Board of Regents whose duties are prescribed by 3 law. (Nev. Const. Art. 11, 4) The Education Article also: (1) requires the 4 Legislature to provide for the election of the members of the Board of Regents of 5 the State University and to define their duties by law; and (2) authorizes the Board 6 of Regents to control and manage the affairs of the State University and its funds 7 under such regulations as may be provided by law. (Nev. Const. Art. 11, 7, 8) 8 As required by the Education Article, the Legislature has provided by law for: 9 (1) the establishment of the State University, which is known as the University of 10 Nevada; and (2) the election of the members of the Board of Regents. (NRS 11 396.020, 396.040) Additionally, the Legislature has: (1) provided by law for the 12 establishment of the Nevada System of Higher Education, which consists of the 13 State University and other educational institutions, programs and operations; and 14 (2) authorized the Board of Regents to administer the System and to prescribe rules 15 for its governance and management. (NRS 396.020, 396.110, 396.230, 396.280, 16 396.300, 396.420, 396.440, 396.550) 17 This resolution proposes to amend the Nevada Constitution to remove the 18 constitutional provisions governing the Board of Regents and to authorize the 19 Legislature to provide by statute for the governance of the State University and for 20 the auditing of public institutions of higher education in this State. However, 21 although this resolution removes the status of the Board of Regents as a 22 constitutional body under the Nevada Constitution, this resolution does not change 23 the status of the Board of Regents as a statutory body under existing statutory 24 provisions, which authorize the Board of Regents to administer the Nevada System 25 of Higher Education and prescribe rules for its governance and management. In 26 addition, this resolution does not repeal, either expressly or by implication, any of 27 those existing statutory provisions relating to the Board of Regents, including the 28 existing statutory provisions that provide for the election of the members of the 29 Board of Regents. 30 Under the federal Morrill Land Grant Act of 1862, each state was provided 31 with certain federal land grants to be sold to support and maintain at least one 32 college in the state that teaches both agriculture and mechanic arts, including 33 military tactics, so long as the state agrees to certain terms and conditions regarding 34 the preservation and use of the proceeds derived from the sale of the federal land 35 grants. (Act of July 2, 1862, ch. 130, 1-8, 12 Stat. 503-05, as amended and 36 codified at 7 U.S.C. 301 et seq.) To secure the benefits offered by the federal 37 law, the Framers of the Nevada Constitution approved Section 8 of the Education 38 Article to provide for the preservation and use of the proceeds derived from the sale 39 of the federal land grants. (Nev. Const. Art. 11, 8; Debates & Proceedings of the 40 Nevada State Constitutional Convention of 1864, at 586 and 589-91 (Andrew J. 41 Marsh off. rep. 1866)) This resolution proposes to amend Section 8 of the 42 Education Article to: (1) remove references to the Board of Regents; (2) delete 43 obsolete provisions; (3) clarify citations to the pertinent federal law, including all 44 amendments thereto; and (4) specify that the proceeds derived under the federal law 45 must be invested by the State of Nevada in the manner required by law. 46 If this resolution is passed by the 2021 Legislature, it must also be passed by 47 the next Legislature and then approved and ratified by the voters in an election 48 before the proposed amendments to the Nevada Constitution become effective. 49 WHEREAS, Article 11 of the Nevada Constitution, commonly 1 known as the Education Article, requires the Legislature to provide 2 for the establishment of a State University that is controlled by a 3 Board of Regents whose duties are prescribed by law (Nev. Const. 4 Art. 11, 4); and 5 WHEREAS, The Education Article also requires the Legislature 6 to provide for the election of the members of the Board of Regents 7 and to define their duties by law (Nev. Const. Art. 11, 7); and 8 WHEREAS, The Education Article authorizes the Board of 9 Regents to control and manage the affairs of the State University 10 and its funds under such regulations as may be provided by law 11 (Nev. Const. Art. 11, 7, 8); and 12 WHEREAS, When drafting the Education Article, the Framers of 1 the Nevada Constitution purposefully added constitutional language 2 to ensure that the powers and duties of the Board of Regents and its 3 members shall be prescribed by the Legislature, in order to not 4 leave it to be inferred, perhaps, that they have absolute control over 5 the State University (Debates & Proceedings of the Nevada State 6 Constitutional Convention of 1864, at 586 (Andrew J. Marsh off. 7 rep. 1866) (statement of Delegate George A. Nourse)); and 8 WHEREAS, The Framers believed that the Board of Regents 9 control and management of the affairs of the State University should 10 be governed by laws enacted by the Legislature (Debates & 11 Proceedings of the Nevada State Constitutional Convention of 1864, 12 at 585-87 (Andrew J. Marsh off. rep. 1866)); and 13 WHEREAS, The Framers did not create the Board of Regents as a 14 constitutional body in the Education Article to give the Board of 15 Regents unchecked autonomy from legislative oversight (Debates & 16 Proceedings of the Nevada State Constitutional Convention of 1864, 17 at 585-91 (Andrew J. Marsh off. rep. 1866)); and 18 WHEREAS, As required by the Education Article, the Legislature 19 has provided by law for the establishment of the State University, 20 known as the University of Nevada, and has provided by law for the 21 election of the members of the Board of Regents (NRS 396.020, 22 396.040); and 23 WHEREAS, The Legislature has provided by law for the 24 establishment of the Nevada System of Higher Education, which 25 consists of the State University and other educational institutions, 26 programs and operations, and for the Board of Regents to administer 27 the System and to prescribe rules for its governance and 28 management (NRS 396.020, 396.110, 396.230, 396.280, 396.300, 29 396.420, 396.440, 396.550); and 30 WHEREAS, In cases before the Nevada Supreme Court, the 31 Board of Regents has asserted that its unique constitutional status 32 gives it virtual autonomy and thus immunity from particular laws 33 and policies enacted by the Legislature (Board of Regents v. Oakley, 34 97 Nev. 605, 607 (1981)); and 35 WHEREAS, Although the Nevada Supreme Court has rejected 36 the Board of Regents broad assertion of autonomy and immunity 37 from laws and policies enacted by the Legislature, the Nevada 38 Supreme Court has recognized that the Board of Regents 39 constitutional status prevents the Legislature from enacting certain 40 legislation that directly interferes with the Board s essential 41 management and control of the University (Board of Regents v. 42 Oakley, 97 Nev. 605, 608 (1981); King v. Board of Regents, 65 Nev. 43 533, 564-69 (1948)); and 44 WHEREAS, Under our Nation s fundamental, well-established 1 and long-standing principles of representative government, the 2 traditional role of the people s elected representatives in the 3 Legislature is to serve as the people s legislative check of 4 accountability to ensure that public bodies, agencies and officers in 5 the other branches of government are carrying out their 6 governmental functions for the benefit of the people and in a manner 7 consistent with the laws and policies enacted by the Legislature; and 8 WHEREAS, The Board of Regents has, at various times, relied on 9 its constitutional status and its authority to control and manage the 10 affairs of the State University as a defensive shield and cloak against 11 the people s legislative check of accountability, and the Board of 12 Regents has, at various times, taken actions that have hindered, 13 thwarted or undermined the Legislature s investigation, review and 14 scrutiny of the institutions, programs and operations of the Nevada 15 System of Higher Education; and 16 WHEREAS, Like other public bodies, agencies and officers of the 17 State Government, the Board of Regents should be subject to the 18 people s legislative check of accountability through legislative 19 oversight, and the Board of Regents control and management of the 20 affairs of the State University should be governed by all laws 21 enacted by the Legislature; and 22 WHEREAS, To secure accountability to the people s elected 23 representatives in the Legislature, the Nevada Constitution should 24 be amended to remove the Board of Regents constitutional status so 25 that the Board of Regents operates only as a statutory public body to 26 ensure that it is subject to the people s legislative check of 27 accountability through legislative oversight and to ensure that the 28 Board of Regents control and management of the affairs of the 29 State University are governed by all laws enacted by 30 the Legislature; and 31 WHEREAS, Amending the Nevada Constitution to remove the 32 Board of Regents constitutional status will allow the Legislature to 33 exercise the full extent of its legislative power to review, reform and 34 improve the programs and operations of the State University and, in 35 doing so, the Legislature will also have more options and greater 36 flexibility to review, reform and improve all other institutions, 37 programs and operations of the Nevada System of Higher 38 Education; and 39 WHEREAS, Amending the Nevada Constitution to remove the 40 Board of Regents constitutional status will not repeal, either 41 expressly or by implication, the existing statutory provisions which 42 apply to the Board of Regents, the State University and all other 43 institutions, programs and operations of the Nevada System of 44 Higher Education, including, without limitation, the existing 45 statutory provisions that provide for the voters to elect the members 1 of the Board of Regents; now, therefore, be it 2 RESOLVED BY THE SENATE AND ASSEMBLY OF THE STATE OF 3 NEVADA, JOINTLY, That this resolution may be cited as the Nevada 4 Higher Education Reform, Accountability and Oversight 5 Amendment; and be it further 6 RESOLVED, That Section 4 of Article 11 of the Nevada 7 Constitution be amended to read as follows: 8 Sec: Sec. 4. 1. The Legislature shall provide by law for 9 the establishment and governance of a State University 10 which shall embrace departments for Agriculture, Mechanic 11 Arts, and Mining to be controlled by a Board of Regents 12 whose duties shall be prescribed by Law. and other 13 departments deemed appropriate for the State University. 14 2. The Legislature shall provide by law for biennial 15 auditing of the State University and any other public 16 institutions of higher education established by the 17 Legislature in this State. 18 And be it further, 19 RESOLVED, That Section 8 of Article 11 of the Nevada 20 Constitution be amended to read as follows: 21 Sec: Sec. 8. The Board of Regents shall, from the 22 interest accruing from the first funds which come under their 23 control, immediately organize and maintain the said Mining 24 department in such manner as to make it most effective and 25 useful, Provided, that all the proceeds of the public lands 26 donated by Act of Congress approved July second AD. 27 Eighteen hundred and sixty Two, 2, 1862, ch. 130, 12 Stat. 28 503, and thereafter amended by Act of Congress, for a 29 college for the benefit of Agriculture , the Mechanics and 30 Mechanic Arts, and including Military tactics , shall be 31 invested by the said Board of Regents State of Nevada in 32 the manner required by law in a separate fund to be 33 appropriated exclusively for the benefit of the first named 34 departments to the State University as set forth in Section 35 Four above; 4 of this Article. And the Legislature shall 36 provide that if through neglect or any other contingency, any 37 portion of the fund so set apart , shall be is lost or 38 misappropriated, the State of Nevada shall replace said 39 amount so lost or misappropriated in said fund so that the 40 principal of said fund shall remain forever undiminished. 41 And be it further, 42 RESOLVED, That Section 7 of Article 11 of the Nevada 43 Constitution be repealed. 44 And be it further, 45 RESOLVED, That this resolution becomes effective upon 1 passage. 2 TEXT OF REPEALED SECTION Sec: 7. The Governor, Secretary of State, and Superintendent of Public Instruction, shall for the first four years and until their successors are elected and qualified constitute a Board of Regents to control and manage the affairs of the University and the funds of the same under such regulations as may be provided by law. But the Legislature shall at its regular session next preceding the expiration of the term of office of said Board of Regents provide for the election of a new Board of Regents and define their duties.

AI Summary

Committee Categories

Marilyn Dondero Loop (D)*,  Thomas Roberts (R)*, 

File No. 26. (on 05/21/2021)

Official Document